Religious liberty before an eight-justice bench

While the U.S. Senate considers whether to confirm Judge Amy Coney Barrett to the Supreme Court, the court will go ahead with two religious liberty cases in the next month. With only eight justices, a tied decision would automatically leave the most recent lower court ruling in place.

First up is Tanzin v. Tanvir, in which the court heard oral arguments Tuesday. The justices are considering whether three Muslim men can receive monetary damages in their religious liberty case. The FBI put the men—all of whom are either U.S. citizens or legal permanent residents—on a “no-fly” list for refusing to become informants in terrorism investigations partly because of their religious beliefs. The FBI removed the men from the list after they sued under the 1993 Religious Freedom Restoration Act (RFRA). But the men say the government should still pay for the harm it caused while they were on the no-fly list.

The ruling could make a difference for religious institutions such as churches fighting restrictive zoning laws. Government policies can cause significant expenses even after they are overturned or retracted.

“Frequently, the government changes laws or reverses its behavior to avoid legal trouble,” said the religious liberty law firm Becket, which filed a friend-of-the-court brief on behalf of the men. “This is a dangerous precedent that allows the government to get away with egregious actions, then deny victims just recourse for the harms they’ve faced.”

The 2nd U.S. Circuit Court of Appeals ruled the men can seek monetary damages, and the government appealed to the Supreme Court. Nearly half of the states have enacted their own versions of RFRA, and the ruling will likely affect whether lower courts can award damages under those laws, as well.

Next up is Fulton v. Philadelphia in early November. The justices will consider whether the city can exclude Catholic Social Services and its foster families from contracts because the agency will not place children with same-sex couples, according to its religious beliefs about marriage. An appeals court ruled against Catholic Social Services in 2019.

The foster agency and families are asking the justices to reconsider the 1990 Employment Division v. Smith decision, in which the court said the government can burden the free exercise of religion without a compelling interest as long as the law applies to everyone equally. Congress passed RFRA as a direct response to Smith, but courts ruled later that it only applies to actions taken by the federal government.

Brad Jacob, associate dean at Regent College of Law, said Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are solidly in favor of overruling Smith, but Chief Justice John Roberts is a wild card: “I think Barrett will be the fifth vote to overrule Smith, but if she is not on the court yet, that may put some internal pressure on Chief Justice Roberts to be the deciding vote.”

Roberts’ desire to avoid a tie may push him to join other conservatives to overrule the lower court decision and hand down clear guidance, Jacob said.

One advantage of the Supreme Court’s COVID-19 procedures: Arguments are livestreamed, so members of the public can listen in.